NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ETC.,
ET AL., APPELLANTS v. HAMPTON COUNTY ELECTION COMMISSION, ETC., ET AL.
No. 83-1015
In the Supreme Court of the United States
October Term, 1984
On Appeal From The United States District Court For The District Of
South Carolina
Brief For The United States As Amicus Curiae Supporting Appellants
TABLE OF CONTENTS
Interest of the United States
Opinion below
Jurisdiction
Summary of argument
Argument:
I. The scheduling of a filing period for candidates
and the setting of an election date are changes subject to
Section 5 preclearance
II. The withdrawal by the Attorney General of his
objection to Act No. 549 did not preclear the changes
in the dates of the election or the qualifying period
Conclusion
OPINION BELOW
The order of the three-judge district court (J.S. App. 1a-11a) is
not reported.
JURISDICTION
The order of the three-judge district court was entered on
September 9, 1983 (J.S. App. 1a). A notice of appeal was filed on
Monday, October 10, 1983 (J.S. App. 12a-13a). By order of December 7,
1983, the Chief Justice extended the time in which to docket the
appeal to December 16, 1983, and the appeal was docketed on that date.
The Court noted probable jurisdiction on June 18, 1984. The
jurisdiction of this Court rests on 28 U.S.C. 1253.
QUESTIONS PRESENTED
The United States will address the following questions:
1. Whether the scheduling of a qualifying period for candidates and
the setting of a date for an election are "changes" subject to the
preclearance requirement of Section 5 of the Voting Rights Act of
1965, 42 U.S.C. 1973c.
2. Whether, when he withdrew his objection to Act No. 549, the
Attorney General precleared the scheduling thereafter of a special
election to be held on March 15, 1983, or the use of an already
expired August 1982 qualifying period for that election.
INTEREST OF THE UNITED STATES
On February 21, 1984, the Court invited the Solicitor General to
express the views of the United States in this case. We responded in
a brief urging summary reversal, and the Court noted probable
jurisdiction on June 18, 1984.
This case raises questions concerning the preclearance of voting
changes pursuant to the Attorney General's enforcement
responsibilities under Section 5 of the Voting Rights Act of 1965, 42
U.S.C. 1973c. Under Section 5, the Attorney General must review
changes in election laws submitted by covered jurisdictions in order
to determine whether such changes have either the purpose or the
effect of denying or abridging the right to vote on account of race or
color. The Attorney General has authority under the Act to initiate
suits to prevent implementation of changes in election laws prior to
compliance with the preclearance procedures of Section 5. See Section
12(d), 42 U.S.C. 1973j(d). The Court's resolution of the questions
presented in this case will affect the Attorney General's execution of
these statutory responsibilities.
STATEMENT
Appellants, two civil rights organizations and several residents of
Hampton County, South Carolina, filed this action in the United States
District Court for the District of South Carolina on March 11, 1983,
to enjoin the holding of elections for two boards of trustees of the
Hampton County public schools. Appellants alleged that the County had
not received preclearance from the Attorney General under Section 5 of
the Voting Rights Act of 1965, 42 U.S.C. 1973c, to conduct the
elections. A three-judge court declined to enjoin the scheduled March
15, 1983 election and, on September 9, 1983, issued an order denying
appellants' request for further injunctive relief and dismissing their
complaint insofar as it sought relief under Section 5. J.S. App.
1a-11a. /1/
1. Prior to 1964, the Hampton County public schools were governed
by a six-member County Board of Education (the County Board). The
members of the County Board were appointed by the Hampton County
delegation to the South Carolina legislature. The County Board, in
turn, appointed two six-member Boards of Trustees, each of which
administered one of the County's two separate school districts. The
County's voters elected at-large a County Superintendent to serve as
an advisor to the teachers and the trustees of the two school
districts. J.S. App. 2a.
On February 18, 1982, the South Carolina General Assembly passed
Act No. 547, 1982 S.C. Acts 3495 (J.S. App. 17a-18a), which
restructured the mode of governance of the Hampton County school
system. Specifically, Act No. 547 provided that beginning January 1,
1983, the County Board was to be composed of six members who were to
be elected at-large, rather than appointed. The Superintendent, who
would continue to be elected at-large, was to serve as an ex officio
member of the Board, with all of the rights and privileges of the
other members, including the right to vote. J.S. App. 2a-3a. The
first elections for the newly constituted Board were to be held in
November 1982. As the three-judge court found (ibid.), the purpose of
electing, rather than appointing, the County Board members was to
create a Board that would be responsive to the consolidation of the
County's two separate school districts. Act No. 547 was submitted for
preclearance by the Attorney General pursuant to Section 5, and the
Act was precleared on April 28, 1982 (J.S. App. 3a).
On April 9, 1982, however, legislation was enacted to overturn Act
No. 547. Act No. 549, 1982 S.C. 3497 (J.S. App. 19a-21a), abolished
the County Board and the office of Superintendent and turned
governance of the Hampton County public schools over to the two boards
of trustees. Act No. 549 further provided that, beginning with the
November 1982 general election, the trustees of each of the two school
districts were to be elected at-large by a plurality of the voters in
each respective district. Act No. 549 also reduced the number of
trustees serving on each board from six to five and required every
candidate for election in November 1982 to file with the Hampton
County Election Commission during the period August 16-31, 1982.
Implementation of Act No. 549 required approval by a majority of the
qualified voters of Hampton County in a referendum to be held in May
1982. On May 25, 1982, the Hampton County Election Commission
conducted the required referendum and a majority of the voters
approved Act No. 549. J.S. App. 3a-4a.
The County submitted Act No. 549 for Section 5 preclearance by the
Attorney General on June 16, 1982. /2/ On August 16, 1982, while the
request for preclearance was pending, the County began accepting
filings under Act No. 549 for the position of trustee. On August 23,
the Attorney General interposed an objection to Act No. 549, stating
that he was unable to conclude that abolition of the County Board did
not discriminate against black residents of Hampton County. The
Election Commission nevertheless continued to accept filings for the
election of trustees under Act No. 549, as well as filings for the
election of County Board members under Act No. 547. On September 1,
1982, the County requested the Attorney General to reconsider his
objection to Act No. 549. J.S. App. 4a-5a.
As of November 2, 1982, the Attorney General had not responded to
the County's request for reconsideration of his objection to Act No.
549. Accordingly, the County proceeded on that date, pursuant to Act
No. 547, to hold elections for the offices of County Board members and
Superintendent of Education. On November 19, 1982, the Attorney
General withdrew his objection to Act No. 549. Thereafter, on the
advice of the South Carolina Attorney General, the Election Commission
scheduled a special election for March 15, 1983, to select the
trustees of the boards of the two school districts. Only those
candidates who had filed for these positions during the August 1982
qualifying period were permitted to stand for election. One black and
four white trustees were elected to the District One Board; all five
trustees elected to the District Two Board are black. J.S. App. 5a-7a
& n.2.
2. Appellants sought to enjoin the holding of the scheduled March
15, 1983 election on the grounds, inter alia, that the County had
violated or would violate Section 5 by:
1. Continuing to accept filings for the trustee positions
after the Attorney General had objected to Act No. 549;
2. conducting an election for trustees without seeking
authority for a filing period;
3. conducting an election for trustees without holding a
filing period subsequent to the Attorney General's withdrawal of
his objection to Act No. 549;
4. conducting an election for trustees on a date other than
that specified in Act No. 549; and
5. abolishing the office of Superintendent of Education and
transferring his duties to the two boards of trustees. /3/
Concluding that the County had complied with its obligations under
Section 5, the three-judge court refused to enjoin the scheduled
election and, by order dated September 9, 1983, denied any further
injunctive relief (J.S. App. 8a-11a). The court held (id. at 9a) that
the first four actions challenged by appellants were not changes
within the meaning of Section 5, but merely "the ministerial acts
necessary to accomplish (Act No. 549's) purposes." Even assuming these
actions were Section 5 changes, the court concluded (J.S. App. 9a-10a)
that the Attorney General had precleared them when he withdrew his
objection to Act No. 549. Relying on this court's decision in Berry
v. Doles, 438 U.S. 190 (1978), for the proposition that "a retroactive
validation of an election law change under Section 5 could be achieved
by after-the-fact federal approval" (J.S. App. 10a), the court held
(ibid.) that "the eventual preclearance of Act No. 549 ratified and
validated for Section 5 purposes those acts of implementation which
had already been accomplished."
Finally, the court held (J.S. App. 10a-11a) that the abolition of
the office of Superintendent of Education and the devolution of his
duties upon the boards of trustees of the two school districts had
been provided for by Act No. 549 and therefore were precleared by the
Attorney General when he withdrew his objection to the Act.
SUMMARY OF ARGUMENT
The district court failed to follow this Court's consistent
admonition that all changes in voting practices and procedures must be
unambiguously submitted and precleared before they can be implemented
by jurisdictions covered by Section 5 of the Voting Rights Act.
I
The district court held that the scheduling of a filing period for
candidates and the setting of an election date were not changes
subject to Section 5 preclearance because they were simply
"ministerial acts" necessary to implement a new law. Section 5,
however, provides no exception from its preclearance requirement for
such "ministerial acts." To the contrary, this Court has consistently
construed the statutory language as reaching "any state enactment
which altered the election law of a covered State in even a minor
way." Allen v. State Board of Elections, 393 U.S. 544, 566 (1969)
(emphasis added). Applying this construction of the statute, the
Court has required Section 5 preclearance of such changes as the
relocation of polling places. For the same reasons that a change in
the location at which an election is held is a change within the
meaning of Section 5, a change in the timing of an election also is
subject to the preclearance requirement. Moreover, the Court has
expressly held that the preclearance requirement applies to changes in
the requirements for candidate qualifications.
In addition, the Attorney General, the official charged with the
administration of Section 5, has consistently construed that statute
as applying to the types of changes in voting practices and procedures
that are involved in this case. His consistent course of
administrative interpretation and practice is entitled to considerable
deference.
II
The district court erred in holding that the Attorney General
precleared the changes at issue here when he withdrew his objection to
Act No. 549, which provided for the selection of school board trustees
at the general November 1982 election and established an August 16-31,
1982 qualifying period for candidates for that election. This Court
has frequently emphasized (United States v. Sheffield Board of
Commissioners, 435 U.S. 110, 136 (1978)) that "the purposes of the
(Voting Rights) Act would plainly be subverted if the Attorney General
could ever be deemed to have approved a voting change when the
proposal was neither properly submitted nor in fact evaluated by him."
In this case, when the Attorney General withdrew his objection to Act
No. 549 on November 19, 1982, he was aware, at most, that the
submitted election date had passed and that a new date would have to
be set. Such knowledge does not constitute preclearance of a new
election date that was never submitted and, indeed, was yet to be set
at the time of the alleged approval.
Likewise, the Attorney General's withdrawal of his objection to Act
No. 549 did not preclear the selection of the August 16-31, 1982
filing period for candidates for the rescheduled election. While Act
No. 549, as submitted to the Attorney General, provided for an August
16-31, 1982 filing period, that filing period was for candidates for
the November 1982 election. As discussed above, however, the election
for school board trustee members was not held in November 1982. The
Attorney General's approval of a filing period for candidates for a
specified election date cannot be deemed also to constitute approval
of the same filing period for a different election date that was never
submitted to him.
ARGUMENT
I. THE SCHEDULING OF A FILING PERIOD FOR CANDIDATES AND THE SETTING
OF AN ELECTION DATE ARE CHANGES SUBJECT TO SECTION 5 PRECLEARANCE
The district court held that the County's scheduling of a filing
period for candidates and setting of a date for the election itself
are not changes subject to Section 5 preclearance because they were
simply "ministerial acts" necessary to implement a new law. But
neither the language of Section 5 nor this Court's broad construction
of it leaves room for any exception from the preclearance requirement
for such "ministerial" acts.
Recognizing the discriminatory potential inherent in changes in
voting practices and procedures, Congress determined that before
certain jurisdictions would be permitted to put any such changes into
effect the changes would have to be precleared either by the United
States District Court for the District of Columbia or the Attorney
General. Section 5 of the Voting Rights Act of 1965 thus requires
Hampton County, as a covered jurisdiction, to obtain a declaratory
judgment from the United States District Court for the District of
Columbia or preclearance from the Attorney General whenever it
enact(s) or seek(s) to administer any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting different from that in force or effect on
November 1, 1964.
42 U.S.C. 1973c (emphasis added).
In order to achieve the prophylactic purpose of Section 5, this
Court has consistently construed the statutory language to reach "any
state enactment which altered the election law of a covered State in
even a minor way." Allen v. State Board of Elections, 393 U.S. at 566
(emphasis added). In so doing, the Court has recognized (id. at 568)
Congress's "intention that all changes, no matter how small, be
subjected to Section 5 scrutiny."
This broad interpretation of Section 5 is buttressed by the
regulations pursuant to which the Attorney General enforces Section 5.
/4/ They too emphasize that
(a)ny change affecting voting, even though it appears to be
minor or indirect, even though it ostensibly expands voting
rights, or even though it is designed to remove the elements
that caused objection by the Attorney General to a prior
submitted change, must meet the Section 5 preclearance
requirement.
28 C.F.R. 51.11 (emphasis added).
Applying this construction of the statute, this Court has required
Section 5 preclearance of such changes as the relocation of polling
places, on the ground that (Perkins v. Matthews, 400 U.S. 379, 387
(1977)): "The abstract right to vote means little unless the right
becomes a reality at the polling place on election day. The
accessibility, prominence, facilities, and prior notice of the polling
place's location all have an effect on a person's ability to exercise
his franchise." For the same reasons that a change in the location at
which an election is held is a change within the meaning of Section 5,
a change in the timing of an election also is subject to the
preclearance requirement.
In addition, in holding that the relocation of polling places is a
change covered by Section 5, the Court in Perkins relied (400 U.S. at
387-388) on legislative history that makes clear that Section 5 also
was intended to cover a change from voting by ballot to voting by
machine. Voting Rights: Hearings on H.R. 6400 Before Subcomm. No. 5
of the House Comm. on the Judiciary, 89th Cong., 1st Sess. 61-62, 95
(1965). See also Allen v. State Board of Elections, 393 U.S. at 568.
Surely the setting of dates for candidate qualification and the
scheduling of the election itself are no more "ministerial" than is a
change from paper ballots to voting machines.
Moreover, the Court has expressly held that the preclearance
requirement of Section 5 applies to changes in the requirements for
candidate qualifications. In both Hadnott v. Amos, 394 U.S. 358,
365-366 (1969), and Allen v. State Board of Elections, 393 U.S. at
551, 570 (Whitley v. Williams), the Court required preclearance of a
change in the date by which an independent candidate was required to
file a declaration of his candidacy. /5/ See also 28 C.F.R. 51.12(g)
(describing as a change subject to preclearance "(a)ny change
affecting the eligibility of persons to become or remain candidates,
to obtain a position on the ballot in primary or general elections, or
to become or remain holders of elective offices"). These authorities
make clear that the County's adoption of the August 16-31, 1982 filing
period for candidates to be elected in March 1983 was a change subject
to the preclearance requirement of Section 5. /6/
Accordingly, the computerized Department of Justice Section 5 files
reveal that, since 1980, approximately 58 changes in election dates
and approximately 10 changes in dates for candidate qualifying periods
have been submitted to the Attorney General for Section 5
preclearance. Our records show that the Attorney General considered
each of these submissions to represent a "change" within the meaning
of Section 5. For example, the Attorney General interposed objections
to two of the latter types of changes: to one, on the ground that
there had been insufficient public notice of the change until shortly
before the qualification period began; and to the second, on the
ground that the requirement that independent candidates must qualify
at the same time as political party candidates would discriminate
against black candidates (who had constituted the vast majority of
independent candidates) and their constituents. /7/ These examples of
the Attorney General's practice, together with the regulations
previously discussed, /8/ manifest a consistent course of construction
by the official charged with the administration of the statute that is
entitled to considerable deference. /9/ See United States v. Clark,
454 U.S. 555, 565 (1982); NLRB v. Bell Aerospace Co., 416 U.S. 267,
274-275 (1974); Udall v. Tallman, 380 U.S. 1, 16 (1965).
The danger inherent in recognizing an exception to Section 5
coverage for "ministerial" acts is evident. Potential for
discrimination exists not only in the practices and procedures
surrounding the actual casting ballots, but equally in the more
mundane steps preliminary to the election itself. Under the
interpretation of the Act adopted by the district court a covered
jurisdiction could obtain preclearance of a general statute without
specifying the steps necessary for its implementation. Thereafter it
would be free to implement the statute through steps that had the
purpose or effect of discriminating against minority voters. Such a
result clearly is contrary to the very purpose of Section 5.
II. THE WITHDRAWAL BY THE ATTORNEY GENERAL OF HIS OBJECTION TO ACT
549 DID NOT PRECLEAR THE CHANGES IN THE DATES OF THE ELECTION OR THE
QUALIFYING PERIOD
A distinct question is whether the changes at issue were precleared
when the Attorney General withdrew his objection to Act No. 549. For
the reasons discussed below, we agree with appellants that they were
not. /10/
A. In our view, the district court erred as a matter of both fact
and law in holding that the Attorney General's withdrawal of his
objection to Act No. 549 precleared the setting of the March 1983
election date. As a matter of fact, the district court clearly erred
in viewing the setting of the March 1983 election date as an "act() of
implementation (of Act No. 549) which had already been accomplished"
(J.S. App. 10a) at the time of the November 19, 1982 withdrawal of
objection. To the contrary, as the district court itself elsewhere
found (id. at 7a-8a), the March 15, 1983 election date was not set
until January 1983, two months after the Attorney General withdrew his
objection.
Moreover, the consistent decisions of this Court preclude the
conclusion that the withdrawal by the Attorney General of his
objection constituted an implicit preclearance of an election date to
be set sometime in the future. The Court has frequently emphasized
(United States v. Sheffield Board of Commissioners, 435 U.S. at 136)
that
The purposes of the (Voting Rights) Act would plainly be
subverted if the Attorney General could ever be deemed to have
approved a voting change when the proposal was neither properly
submitted nor in fact evaluated by him.
Accord, McCain v. Lybrand, No. 82-282 (Feb. 21, 1984), slip op. 12;
Allen v. State Board of Elections, 393 U.S. at 571 ("(a) fair
interpretation of the Act requires that the State in some unambiguous
and recordable manner submit any legislation or regulation in question
directly to the Attorney General with a request for his consideration
pursuant to the Act"). In this case, when the Attorney General
withdrew his objection to Act 549 on November 19, 1982, he was aware,
at most, that the submitted election date had passed and that a new
date would have to be set. Under the foregoing authorities, such
knowledge decidedly does not constitute preclearance of an election
date that was never submitted and, indeed, was yet to be set at the
time of the alleged approval. /11/
Advance preclearance of future, unspecified changes thus is
contrary to the basic concept of Section 5. It is also inconsistent
with the practicalities of administering the statute. In the small
percentage of cases in which an objection is interposed, the objection
is based not on abstract surmise, but rather on the practical
realities of the specific changes proposed, which often are brought to
the Attorney General's attention by members of the communities that
will be affected by the change. For example, the objections
interposed to the changes in qualifying periods and election date
discussed above (pages 13-14 & note 7, supra) all were based, at least
in part, on information and comments received by the Attorney General
from other "interested parties." Indeed, the Attorney General's
regulations (28 C.F.R. 51.27) specifically provide for the submission
of comments by interested individuals and groups. /12/ Such comments
obviously are most usefully addressed to specific changes that are
proposed in the jurisdiction's submission. Hence, the entire
administration of the Act would be undermined if as yet unspecified
future changes were held precleared by implication at the time of
preclearance of related legislation. As this Court has reiterated,
Section 5 is concerned "'with the reality of changed practices as they
affect Negro voters.'" Dougherty County Board of Education v. White,
439 U.S. 32, 41 (1978) (quoting Georgia v. United States, 411 U.S.
526, 531 (1973)).
B. For the same reasons, the withdrawal by the Attorney General of
his objection to Act No. 549 also did not preclear the setting of the
August 16-31, 1982 filing period for candidates for the rescheduled
March 15, 1983 election. To be sure, Act No. 549, as submitted to the
Attorney General and as approved by him when he withdrew his objection
on November 19, 1982, provided for an August 16-31, 1982 filing
period. /13/ That filing period, however, was for "candidates
offering for election in November 1982" (note 13, supra). As
discussed above (page 5, supra), because of the Attorney General's
initial objection to Act No. 549, no election for trustee was held in
November 1982; rather, in January 1983 the County rescheduled the
election for March 15, 1983. At the same time, the County selected
the August 16-31, 1982 period as the filing period for the
rescheduled, March election (J.S. App. 7a). Because Act No. 549, as
submitted to the Attorney General, provided for an August filing
period for candidates for a November election, his approval of that
legislation cannot be deemed clearance of the County's subsequent
selection of the already expired August 1982 filing period for the
March election (or any ensuing elections). /14/
CONCLUSION
The Court should reverse the judgment of the district court insofar
as it failed to hold that the County violated Section 5 by not
submitting for preclearance the August 1982 filing period for the
March 1983 election and the March 15, 1983 election date itself, and
remand the case for the entry of appropriate orders. /15/
Respectfully submitted.
REX E. LEE
Solicitor General
WM. BRADFORD REYNOLDS
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JAMES P. TURNER
Deputy Assistant Attorney General
BARBARA E. ETKIND
Assistant to the Solicitor General
JESSICA DUNSAY SILVER
WILLIAM R. YEOMANS
Attorneys
AUGUST 1984
/1/ Appellants also alleged violations of Section 2 of the Voting
Rights Act, 42 U.S.C. 1973, and the Fourteenth and Fifteenth
Amendments. Those claims are still pending in the district court.
J.S. 6 n.3.
/2/ Although Department of Justice regulations expressly authorize
submission and preclearance of "a change for which approval by
referendum * * * is required * * * if the change is not subject to
alteration in the final approving action and if all other action
necessary for approval has been taken" (28 C.F.R. 51.20), the County
waited until approximately three weeks after the referendum to submit
Act No. 549 for preclearance by the Attorney General. The Attorney
General received the submission on June 24, 1982 (J.S. 4).
/3/ Appellants have abandoned their further contention that the
County violated Section 5 by holding the election for trustees without
first certifying the results of the May 1982 referendum to the South
Carolina Code Commissioner, as required by Act No. 549 (J.S. 6 n.2).
/4/ Recognizing "the central role of the Attorney General in
formulating and implementing Section 5," the Court has accorded
"particular deference" to his interpretation of the scope of the
provision, as codified in the regulations. Dougherty County Board of
Education v. White, 439 U.S. 32, 39 (1978). See also Blanding v.
DuBose, 454 U.S. 393, 401 (1982); United States v. Sheffield Board of
Commissioners, 435 U.S. at 138.
/5/ Indeed, in a subsequent decision holding preclearance required
for the imposition of a financial impediment to candidacy, the Court
reasoned that the rule there at issue "erects 'increased barriers' to
candidacy as formindable as the filing date changes at issue in"
Hadnott and Allen. Dougherty County Board of Education v. White, 439
U.S. at 43. The Court also analogized the rule there at issue to the
"inhibition on entry into the elective process" resulting from
"filing-fee changes * * * to which the Attorney General has
successfully interposed objections." Id. at 40. The selection of an
already-expired qualifying period obviously has no less potential for
impeding candidacy.
/6/ In committee reports accompanying its enactment of extensions
of the expiration date of the Voting Rights Act, Congress has
repeatedly cited with approval the broad interpretation of the Act's
coverage contained in Allen v. State Board of Elections and Perkins v.
Matthews. See H.R. Rep. 94-196, 94th Cong., 1st Sess. 9 (1975); S.
Rep. 94-295, 94th Cong., 1st Sess. 16 (1975). Accordingly, this Court
has reaffirmed these prior holdings in United States v. Sheffield
Board of Commissioners, 435 U.S. at 122-123, and Dougherty County
Board of Education v. White, 439 U.S. at 37-40. See also S. Rep.
97-417, 97th Cong., 2d Sess. 8 (1982); H.R. Rep. 97-227, 97th Cong.,
1st Sess. 6 (1981).
/7/ An objection also was interposed to one of the 58 submitted
changes in election dates. The basis for that objection was that,
while the submitted change in election date would coincide with an
election for local school board members in which a significant number
of non-minority voters could be expected to participate, it would not
coincide with the date on which the predominant proportion of minority
voters would be voting for local school board members.
When a jurisdiction submits a purported "change" in voting practice
or procedure that the Attorney General does not consider to be covered
by Section 5, he so advises the jurisdiction. No such advice was
given with respect to any of the 68 submissions we have surveyed. To
the contrary, with the exception of those jurisdictions whose
submissions are still pending, each jurisdiction was sent a letter
advising either that the submitted change had been precleared or that
an objection to it had been interposed.
/8/ The substance of 28 C.F.R. 51.11 (discussed at page 11, supra)
was initially promulgated in 1971, as part of the first regulations
implementing Section 5 (28 C.F.R. 51.4(a) (1972); 36 Fed. Reg. 18186,
18187 (1971)):
All changes affecting voting, even though the change appears
to be minor or indirect, to expand voting rights or to remove
the elements which caused objection by the Attorney General to a
prior submission, must either be submitted to the Attorney
General or be made the subject of an action for declaratory
judgment in the U.S. District Court for the District of
Columbia.
/9/ Although our computerized Section 5 files extend back only to
1980, we are advised by longstanding Civil Rights Division staff that
the types of changes at issue here -- scheduling of election dates and
qualifying periods -- have always been treated by the Attorney General
as covered by the preclearance requirement of Section 5.
/10/ We agree with the district court (J.S. App. 10a-11a) that the
abolition of the office of Hampton County Superintendent of Education
and the devolution of his duties on the boards of trustees were
specifically provided for by Act No. 549 and therefore were precleared
when the Attorney General withdrew his objection to that Act.
Appellants alleged in the district court, however, that the
Superintendent was prematurely stripped of his duties and authority
(J.S. 12). We lack sufficient knowledge to determine whether this
action requires further Section 5 clearance. To the extent that the
Superintendent's loss or responsibility is an inevitable and
forseeable consequence of the abolition of the County Board which he
served, the change has been precleared. If, however, the County has
abolished the office of Superintendent prior to June 30, 1985,
contrary to Act No. 549, it has shortened the term of an elected
official and must seek clearance of the change under Section 5. See
28 C.F.R. 51.12(i) (defining as a change subject to preclearance
"(a)ny change in the term of an elective office or an elected official
or in the offices that are elective").
/11/ The same authorities undermine appellees' reliance (Mot. to
Dis. or Aff. of Hampton County School Districts 18) on the Attorney
General's failure to note in his letter withdrawing his objection to
Act No. 549 that the setting of a new election date would be subject
to further submission. Section 5 clearly places the burden of
submitting a voting change on the covered jurisdiction, regardless of
whether the Attorney General has made a specific request for a
submission.
Appellees have never claimed that they submitted the March 15, 1983
election date for preclearance. Rather, in addition to the spurious
"implicit preclearance" argument answered in the text above, they
argue that the establishment of a new date for the election was not a
change and that, as a practical matter, submission of election dates
for preclearance would be impossible, since the Attorney General might
not respond before the scheduled date (Mot. to Dis. or Aff. of Hampton
County Election Commission and Treasurer 17-21; Mot. to Dis. or Aff.
of Hampton County School Districts 17-20). Because the Attorney
General must respond to any submission within 60 days after he
receives all of the necessary information (28 C.F.R. 51.8, 51.35,
51.37), however, a covered jurisdiction need only select an election
date sufficiently far in the future to allow preclearance. Indeed,
here, if appellees had made a complete submission of the date change
in question at the time that change was made -- January 1983 -- there
is no reason to believe that the Attorney General's decision could not
have been made prior to the scheduled March 15 election date.
/12/ The regulations also advise jurisdictions having a significant
minority population that "(r)eview by the Attorney General will be
facilitated if", in addition to the information that is required to be
submitted, they also provide "the names, addresses, telephone numbers,
and organizational affiliation (if any) of racial or language minority
group members who can be expected to be familiar with the proposed
change or who have been active in the political process." 28 C.F.R.
51.26, 51.26(f).
/13/ Act No. 549 provides in pertinent part (J.S. App. 19a-20a):
Beginning with the general election in November, 1982,
trustees for Hampton County School Districts Nos. 1 and 2 shall
be elected by a plurality vote of the electors within their
respective district qualified and voting at the general election
for representatives. The number of trustees shall be five for
each school district and their terms of office shall begin
January 1, 1983. * * * A candidate for membership on a school
board must reside in the school district he seeks to represent
and all candidates offering for election in November, 1982, must
file during the period August 16-31, 1982.
/14/ In our view, a filing date for candidates cannot be viewed in
isolation from the particular election for which the candidates are
filing. Cf. Local 3489, United Steelworkers v. Usery, 429 U.S. 305,
310-311 (1977) (pointing out, in union democracy context, that
non-incumbent candidacy is likely to be stimulated by, and responsive
to, issues that arise or become more pronounced "shortly before
elections"). Accordingly, the use of an August 16-31, 1982 filing
period for candidates for a March 1983 election was an innovation and,
hence, a change within the meaning of section 5 -- in contrast to a
recurring fixed filing period (where repeated preclearance would not
be required). In any event, even if the qualifying period itself did
not require further approval, the March 15, 1983 election date
requires preclearance, and one of the factors the Attorney General may
take into account in considering the discriminatory effect or purpose
of the rescheduled election date is the relation between the August
filing period and the March election date.
/15/ This Court has held that in certain circumstances the
appropriate remedy for failure to preclear a voting change is not
automatically to invalidate an entire election, but rather to afford
the offending jurisdiction a reasonable opportunity within which to
seek clearance of the change. Berry v. Doles, 438 U.S. 190, 192-193
(1978); Perkins v. Matthews, 400 U.S. at 396-397. Similarly, in
numerous instances, the Attorney General has extended retroactive
clearance to a belatedly submitted change that had already been put
into effect. We do not address whether appropriate circumstances for
retroactive clearance are presented by this case, since that question
is properly addressed in the first instance to the equitable remedial
authority of the district court. Perkins v. Matthews, 400 U.S. at
397.